Minimum wage laws have forced restaurants to raise prices and lose business. Many owners are not happy. One recourse is to tell customers about the effects of these laws on their pocketbook. Some restaurants are posting a minimum wage surcharge on their menus, so that diners recognize the reasons that establishments have jacked up their prices.
But in some jurisdictions this surcharge is illegal. For instance, in New York a statewide law bans the practice even if notice is prominently displayed. Such laws violate the First Amendment and block one of the best ways of getting the public to debate the costs of minimum wage laws.
Commercial speech gets somewhat less protection than political speech under current doctrine. But even if this surcharge and explanation were (wrongly) given only the protection afforded to commercial speech, such laws would still be unconstitutional. Commercial speech, like advertising, cannot be prohibited unless the restriction is “narrowly tailored to advance a significant government interest.” But it is hard to see any significant government interest advanced by these laws.
In any event, the speech at issue here is political speech, because it provides information about the effects of the minimum wage. If so, it can only be suppressed by a compelling government interest, like forestalling violence.